It was a happy day. The Senate had just confirmed my nomination by the President, and I would soon take the oath of office and become a federal appeals court judge in Washington, DC. A number of friends called me that day in my office at BYU, offering their congratulations. One had been a law clerk both to a judge on the court I was about to join and to a justice of the US Supreme Court. “Tom, may I give you some advice about being a judge?” he asked. “Please do,” I replied. “I am teachable.” I could think of few people I knew better qualified to be my tutor. “I’ll tell you what my first judge told me on my first day in his chambers. ‘This is how we go about our work,’ he said. ‘First, we learn the facts of the case as best we can. People deserve to know that we understand their predicament. Next, we think long and hard about the fair result, the just outcome. Once we have figured that out, we find law to support our decision.’” Because the purpose of his call was congratulatory and not to engage in a discussion about the proper role of a judge under Article III of the Constitution, I thanked my friend for his words. But when I hung up the phone, I took a vow that I would do my best to heed the first part of his advice—learn the facts of the case as best I could—and to studiously avoid the second part.
Under the Constitution, it is the responsibility of We, the People to elect representatives who make laws that express their value choices as to what is fair and just. Remember the cartoon from high school civics, “How a Bill Becomes a Law,” or its more recent form, “I’m Just a Bill” from Schoolhouse Rock? There is no judge in either because there is no role for a judge in the carefully-crafted lawmaking process set forth in the Constitution. In the words of the legendary Supreme Court justice Felix Frankfurter, the judge is “merely the translator of another’s command.”1 That other is We, the People. Their command is the law created by their politically accountable representatives and set forth in the Constitution, statutes, and regulations. The judge is the translator of those commands. In other words, she must apply the law that expresses the values chosen by We, the People to resolve the dispute before her. What the judge may not do is resolve the dispute according to her own sense of what is fair and just. As BYU’s own Brett Scharffs explains, “Following the law places a judge in a role that is, in large part, clerical, where he labors largely as a functionary, applying and implementing the law. To be sure, the volume, variety, and complexity of the issues that a judge encounters make his work difficult, but the judge’s primary task is to find and follow the law.”2
Which is why judges wear black robes (purchased with our own money!). Although the robe may be imposing to the litigants—we don’t do much robing in America—it is intended to do something quite different for the judge. The robe is a reminder that we must be transformed by the oath of office. All federal judges must take an oath to support “the Constitution and laws of the United States . . . So help me God.”3 The words of that oath were set forth in the first Act of the first Congress. The judicial oath has a long history, rooted in a belief that it can transform its taker. The oath is not empty ritual or just ceremony. (For a moving portrayal of the transformative power of the oath, check out the dialogue between a young Elizabeth and her father George on his coronation day in Episode 5 of Season 1 of The Crown.) In the oath, the judge makes a solemn promise, with God as his witness and his help, that, when acting as a judge, he will be a different person than when he is not acting as a judge; that he will resist the temptation to displace the law created by We, the People with his own wishes about who should prevail in court.
I first donned a robe of any sort when I was a teenage acolyte at St. John’s Episcopal Church. Although no one who knew me then would have mistaken me as someone who was devout, when I put on the white robe, slipped the crucifix around my neck, and helped the priest prepare Holy Communion, I felt different. I sensed that I was in the presence of something holy. Later, as an adult Latter-day Saint wearing a white robe in the temple, I felt different as well. The robe was a symbol of an effort to be bound to Christ so that I could better love and serve others. The robe I wear as a judge has no religious function. Indeed, it is a reminder to me that my primary allegiance when acting as a judge is to the Constitution and not to God. (I’ve never yet found those to be in tension. If they are, my obligation is clear. While wearing the robe, it’s Caesars all the way down!) But just as the white robe I wore as an acolyte and now wear as a temple patron remind me that my true self is not at home in this fallen world, so the black robe I wear as a judge reminds me that when adjudicating disputes, I must leave behind my own views. I must strive to be a “translator of another’s commands.”
-By Thomas B. Griffith
Thomas B. Griffith, a BYU humanities graduate, is a judge on the US Court of Appeals for the DC Circuit. He has served as BYU general counsel and as legal counsel to the US Senate.
1. Felix Frankfurter, Some Reflections on the Reading of Statutes, 47 Colum. L. Rev. 527, 534 (1947).
2. Brett Scharffs, The Role of Humility In Exercising Practical Wisdom, 32 U. C. Davis L. Rev. 127, 187, 189–90 (1998).
3. 5 U. S. C. Sec. 1331.
Supreme Court justice Felix Frankfurter served on the Court from 1939–1962.